Writing in Heenan Blaikie’s Workplace Wire, Jeffrey Goodman says that “one critical part of the CIBC and BNS decisions has the potential to turn both into Pyrrhic victories for the plaintiffs in those cases.” What Goodman is referring to is the Court of Appeal’s refusal to allow damages to be determined on an aggregate basis, instead ruling that they had to be determined individually.

“Many of the class members are current employees,” Goodman notes. “This means that these employees will need to testify in the case in order to prove any claim and receive any payment. Some (or many) may decide it is better not to become actively involved in litigation against their employer, particularly if their potential overtime entitlement is small.

“Had the Court of Appeal allowed the use of aggregate damages, then many of these employees could have remained completely passive, and still received an award of damages based on the statistical evidence (albeit not one that necessarily reflected the amount of overtime that they actually worked). Moreover, the prospect of holding thousands of mini trials is unlikely to be attractive to the plaintiffs given the failed history of that procedure in earlier employment class actions.”